Irving unilaterally implemented a drug and alcohol policy at one of its paper mills, which included a requirement that 10% of staff in safety-sensitive positions be randomly subject to unannounced breathalyzer testing over the course of a year. A positive test would attract significant disciplinary measures, including dismissal for cause.

Originally, the Union successfully brought a grievance challenging the mandatory random alcohol testing aspect of the policy. The arbitration board weighed Irving’s interest in random alcohol testing as a workplace safety measure against the harm to the employees’ privacy interests, and concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace. However, the board’s award was set aside as unreasonable on judicial review, and a further appeal to the New Brunswick Court of Appeal was dismissed. The Union made a final appeal to the Supreme Court of Canada.

The Supreme Court’s Ruling on Random Workplace Alcohol Testing

The SCC noted that the collective agreement did not authorize random workplace alcohol or drug testing. Thus, the appeal centered on the issue of whether the random testing policy could be justified by the general management rights clause contained in the collective agreement. As a general matter in a unionized workplace, management does have a limited authority to make unilateral rules or policies; however, any rule or policy that is unilaterally imposed by an employer and not subsequently agreed to by the union must be consistent with the collective agreement, and must be reasonable. Reasonableness is determined by balancing competing interests, which in this case were workplace safety and employee privacy.

The SCC stated that an employer could be justified in unilaterally implementing a random alcohol testing policy in circumstances where doing so is proportionate in light of both legitimate safety concerns and privacy interests. The SCC opined that seizing bodily samples, such as breath samples, is highly intrusive, lead to a loss of liberty and personal autonomy, and is thus detrimental to employee privacy. A dangerous workplace alone is not sufficient to ground random alcohol testing; to overcome employees’ reasonable privacy expectations requires compelling facts, such as evidence of a workplace problem with alcohol use. The SCC thus found that Irving had exceeded the scope of its management rights under the collective agreement by unilaterally implementing the random alcohol testing policy, and reinstated the arbitral board’s original decision.

The Precedent Moving Forward

Although this case was ostensibly confined to the unionized employment context, the Court’s ruling regarding the balance between workplace safety and employee privacy, and the need for employers to justify drug and alcohol testing policies on the basis of specific, demonstrated safety risks in the workplace, such as evidence of substance abuse – even in objectively dangerous work environments – will likely extend to non-unionized workplaces. Furthermore, while this case was decided with respect to random alcohol testing, the Court’s reasoning appears to also be consistent with random drug testing.